Research › Search › Judgment

Calcutta High Court · body

2011 DIGILAW 1393 (CAL)

Gautam Deb v. Mukul Roy

2011-09-30

Asim Kumar Ray

body2011
The judgment of the Court was as follows:- This is an application under Article 227 of the Constitution of India praying for quashing the proceeding being complaint Case No. C/11922 of 2011 pending before the learned Chief Judicial Magistrate, Calcutta. 2. The factual background leading to the presentation of this application in a nutshell is that the opposite party filed a petition of complaint before the learned Chief Metropolitan Magistrate, Calcutta, alleging, inter alia, that on 16th April, 2011 petitioner/accused during his press conference made defamatory statement saying that "All India Trinamul Congress is spending 'black money' to the tune of Rs. 100 crores to fund the Assembly elections and since March 25, the 22 Trinamul candidates have been given Rs. 15 Lakhs each (amounting to nearly Rs. 34 crores). Such funds are ill-gotten and vouchers were burnt later on to destroy the evidence. Since one of the candidates for the ensuring Assembly election, namely, Upen Biswas did not accede to such proposal and is not involved with such illegal black money business, so the All India Trinamul Congress is trying to ensure that Upen Biswas loses the Assembly sit. Furthermore, air conditioned rooms are being booked for Mamanta Banerjee and her associates and they are travelling by helicopters but source of such income of the party remains undisclosed, thereby clearly indicating that the party deals in black money business. Mamata Banerjee has claimed that she has sold paintings to the tune of Rs. 2 crores but who has purchased such worthless and unappreciable paintings is unknown to anyone. Mamata Banerjee who claims herself to be a symbol of honesty and wears rubber slippers and All India Trinamul Congress leader Mukul Roy (the complainant herein) are responsible for the handling of the entire black money business that is being carried on. The other leaders of the party like Partha Chatterjee, Subrata Mukherjee and Somen Mitra are unaware of such black money dealings as Mamata Banerjee do not trust them and have no confidence on them" The press conference was made intentionally to harm the reputation of the opposite party/complainant and his party which was telecasted through a Bengali television channel, namely, 24 Ghanta' and thereby lowered the credit of the opposite party/complainant and his party in the estimation of the general people, friends and others. The said statement of the petitioner/accused were also published in the daily newspaper irrespective of the fact that the same were false and baseless and were made willfully and deliberately with motive to lower the reputation of the opposite party/complainant. 3. On 26th April, 2011, the learned Magistrate passed an order taking cognizance and directing the issuance of summons upon the petitioner/accused. So this revisional application. 4. Mr. Bikash Ranjan Bhattacharjee, learned Senior Advocate appearing for the petitioner/accused has contended that the complaint ipso facto does not make out a ground for defamation as defined under Section 499 of the Indian Penal Code. The statement made by the petitioner was in good faith and for public interest when the election was at the door. The same will fall within the protective umbrella of tenth exception to Section 499 of the Indian Penal Code. The said statement was neither defamatory nor slanderous or anything to do personally with the complainant. Therefore, the order impugned whereby the learned Chief Metropolitan Magistrate, Calcutta after taking cognizance issued the summons may be interfered with and the proceeding pending before the learned Court below may be quashed. 5. Mr. Bhattacharjee has referred to the following decisions:- 1. AIR 1972 SC 2609 (G. Narsimhan and Ors. v. T.V. Chokkappa); 2. AIR 1966 SC 97 (Harbhajan Singh v. State of Punjab and Anr.); 3. AIR (32) 1945 Patna 450 (Jagannath Mishra v. Ram Chandra Deo); 4. AIR 1966 All 377 (Purshottam Lal Sayal v. Prem Shanker); 5. AIR 1956 SC 541 (Kartar and Ors. v. The State of Punjab) and 6. 1977 Cr. LJ 21 (Asha Parekh and Ors. v. State of Bihar and Ors.). 6. Mr. Debasish Roy, learned Advocate appearing for the opposite party/ complainant has contended that the word 'Len Den' which is coming out from Annexure-A of the revisional application (page 18) itself speaks that the said word is not a 'fair comment' of the petitioner/accused. He has contended further that the petition of complaint gives out a specific allegation and the same was taken care of by the learned Magistrate after recording the evidence on solemn affirmation of the opposite party/complainant and his two witnesses. He has contended further that the petition of complaint gives out a specific allegation and the same was taken care of by the learned Magistrate after recording the evidence on solemn affirmation of the opposite party/complainant and his two witnesses. A prima facie case under Section 500 of the IPC appears to have been established against the petitioner which is why the learned Magistrate took cognizance of the offence and passed an order for issuance of summons against the petitioner/accused. There is no illegality in the order impugned and the proceeding pending before the learned Court below does not call for an order of quashing on the threshold. 7. He has countered the decisions cited by Mr. Bhattacharjee and has contended that AIR 1972 SC 2609 (G. Narsimhan and Ors. v. T. V. Chokkappa), 1977 Cri LJ 21 (Asha Parekh and Ors. v. State of Bihar and Ors.), AIR 2010 8C 3196 and 1977 Cri LJ 212 (Shatrughna Prasad Sinha v. Rajbhau Surajmal Rathi and Ors.) relates to the matter wherein a class of people was involved. The case which is in our hand is totally based on different factual background. So those citations are not applicable in this matter. Other decisions i.e. AIR 1966 All 377 (Purshottam Lal Sayal v. Prem Shanker), AIR 1956 SC 547, AIR 1966 SC 92 and 2010 (3) AICLR 487 are not applicable in this case and the same are on different fact and relates to the Evidence Act. 8. Mr. Roy has relied on Stroud's Judicial Dictionary and 2010 (3) AICLR 487, (Jeffrey J. Diermeier and Anr. v. State of West Bengal and Anr.). 9. The moot question for consideration is whether in the light of the allegation as projected in the complaint against the petitioner/accused, it is a fit case where this Court in exercise of its power under Article 227 of the Constitution of India will pass an order quashing the proceeding on the threshold or not? 10. Before addressing to the contention advanced on behalf of the parties it will be helpful to note the scope and ambit of power of this Court under Article 227 of the Constitution. Article 227 envisaged the power of superintendence for all Courts by the High Court. 10. Before addressing to the contention advanced on behalf of the parties it will be helpful to note the scope and ambit of power of this Court under Article 227 of the Constitution. Article 227 envisaged the power of superintendence for all Courts by the High Court. In Nibaran v. Mahendra ( AIR 1963 SC 1895 ) and Chandavarka v. Ashalata (AIR 1986 SC 117) the Hon'ble Apex Court has observed that "interference under Article 227 (1) can be suo motu, but cannot be resorted to merely because the High Court takes a different view on the merits. Generally, it is limited to want of jurisdiction, errors of law, perverse findings, gross violation of natural justice and so on." 11. In Ouseph Mathaiv. M. Abdul Khadir ( AIR 2002 SC 110 ) the Hon'ble Apex Court observed that exercise of power under Article 227 may be necessary if it is shown that grave injustice has been done to a party and the case is a fit case. 12. Bearing in mind the aforestated principles let us now advert to the subject-facts. 13. As placed above the gravamen of the allegations made against the petitioner/accused in the complaint under Section 500 of IPC is that "All India Trinamul Congress is spending 'black money' to the tune of Rs. 100 crores to fund the Assembly elections and since March 25, the 22 Trinamul candidates have been given Rs. 15 Lakhs each (amounting to nearly Rs. 34 crores). Such funds are ill-gotten and vouchers were burnt later on to destroy the evidence. Since one of the candidates for the ensuring Assembly election, namely, Upen Biswas did not accede to such proposal and is not involved with such illegal black money business, so the All India Trinamul Congress is trying to ensure that Upen Biswas loses the Assembly sit Furthermore, air conditioned rooms are being booked for Mamanta Banerjee and her associates and they are travelling by helicopters but source of such income of the party remains undisclosed, thereby clearly indicating that the party deals in black money business. Mamata Banerjee has claimed that she has sold paintings to the tune' of Rs. 2 crores but who has purchased such worthless and unappreciable paintings is unknown to anyone. Mamata Banerjee has claimed that she has sold paintings to the tune' of Rs. 2 crores but who has purchased such worthless and unappreciable paintings is unknown to anyone. Mamata Banerjee who claims herself to be a symbol of honesty and wears rubber slippers and All India Trinamul Congress leader Mukul Roy (the complainant herein) are responsible for the handling of the entire black money business that is being carried on. The other leaders of the party like Partha Chatterjee, Subrata Mukherjee and Somen Mitra are unaware of such black money dealings as Mamata Banerjee do not trust them and have no confidence on them". 14. The factum of press conference by the petitioner/accused person, telecast of the same by channel "24 Ghanta" and the publication thereof afterward highlighting the alleged collections and distribution of black money to the candidates of a particular political party for political gain by the opposite party/complainant and his party is not disputed, contradicted and denied by the petitioner/accused person. Therefore, the question of determination is as to whether the allegation in the complaint constitute an offence of defamation' as defined in Section 499 of the Indian Penal Code and would invite the penal consequences in terms of Section 500 of the Indian Penal Code. 15. Section 499 of the Indian Penal Code defines defamation. It reads as under:"- 499.Defamation-Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person. Explanation 1.-It may be amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives. Explanation 2-It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. Explanation 3-An imputation in the form of an alternative or expressed ironically, may amount to defamation. Explanation 2-It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. Explanation 3-An imputation in the form of an alternative or expressed ironically, may amount to defamation. Explanation 4.-No imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful." 16. To constitute 'defamation' under Section 499 of the IPC there must be that imputation have been made or published with the intention of harming or knowing or having reason to believe that it will harm the reputation of the person about whom it is made or aimed at. However, as per Explanation 4 of the Section 499 of the IPC no imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful. 17. The main thrust of argument of Mr. Bhattacharjee is that the statement made by the petitioner was in good faith and for public good so the case falls within the ambit of tenth exception to Section 499 of the Indian Penal Code, and therefore, the petitioners/accused persons cannot be held liable for defamation, specially when the statement was made in the eve of election. 18. Tenth exception to Section 499 of the IPC reads as follows:- "Tenth Exception.-Caution intended good of person to whom conveyed or for the public good. It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good." 19. It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good." 19. On plain reading of the exception placed hereinabove, it appears that in order to bring a case within the scope of tenth exception it must be proved that the statement was intended in good faith and for the good of the person to whom it was conveyed or for the public good. Mr. Roy has relied on Jeffrey J. Diermeier and Anr. v. State of West Bengal and Anr. (supra) where the Hon'ble Apex Court has observed as follows (paras 32 and 33):- "32. It is trite that where to the charge of defamation under Section 500 IPC the accused invokes the aid of Tenth Exception to Section 499 IPC, "good faith" and "public good" have both to be established by him. The mere plea that the accused believed that what he had stated was in "good faith" is not sufficient to accept his defence and he must justify the same by adducing evidence. However, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. It is well settled that the degree and the character of proof which an accused is expected to furnish in support of his plea cannot be equated with a degree of proof expected from the prosecution in a criminal trial. The moment the accused succeeds in proving a pre-ponderance of probability, onus which lies on him in this behalf stands discharged. Therefore, it is neither feasible nor possible to try the said test in "good faith" and for "public good" under the said exception. The question has to be considered on the facts and circumstances of each case, having regard to the nature of imputation made; the circumstances on which it came to be made and the status of the person who makes the imputation as also the status of he person against whom imputation is allegedly made. These and a host of other considerations would be relevant and required to be considered for deciding appellants plea of "good faith" and "public interest". Unfortunately, all these are questions of fact and matters for evidence." "33. These and a host of other considerations would be relevant and required to be considered for deciding appellants plea of "good faith" and "public interest". Unfortunately, all these are questions of fact and matters for evidence." "33. In the instant case, the stage for recording of evidence had not reached and, therefore, in the absence of any evidence on record, we find it difficult to return a finding whether or not the appellants have satisfied the requirements of "good faith" and "public good”. so as to fall within the ambit of the Tenth Exception to Section 499 IPC. Similarly, it will neither be possible nor appropriate for this Court to comment on the allegations levelled by respondent No.2 and record a final opinion whether these allegations do constituted defamation. Reading the complaint as a whole, we find it difficult to hold that a case for quashing of the complaint under Section 482 of the Code has been made out. At this juncture, we say no more lest it may cause prejudice to either of the parties." 20. In Harbhajan Singh v. State of Punjab (supra), the Hon'ble Supreme Court has held that whether or not good faith has been proved an accused person who pleads in his defence the Ninth Exception under Section 499 to a charge of defamation under Section 500, IPC is a question of fact. Even if it is assumed to be a mixed question of law and fact, where the Courts below give a concurrent finding on such a question, the Supreme Court does not generally re-examine the matter for itself when exercising its jurisdiction under Article 136 of the Constitution. 21. It was further observed by the Hon'ble Supreme Court, however in the present case that in dealing with the question of good faith the High Court had misdirected itself materially on points of law, and that, therefore, its finding could not be accepted. 22. The Hon'ble Apex Court further held that where to the charge of defamation under Section 500, Penal Code, the accused invokes the aid of Exception 9 to Section 499, good faith and public good have both to be established. The failure to prove good faith would exclude the application of the Ninth Exception in favour of the accused even if the requirement of public good is satisfied. 23. The failure to prove good faith would exclude the application of the Ninth Exception in favour of the accused even if the requirement of public good is satisfied. 23. It has been further observed by the Hon'ble Apex Court that there is no consensus of judicial opinion in favour of the view that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. This, however, is the test prescribed while deciding whether the prosecution has discharged its onus of proving the guild of the accused. It is not a test which can be applied to an accused person who seeks to prove substantially his claim that his case falls under an exception. Where he is called upon to prove that his case falls under an Exception, law treats the onus as discharged if he succeeds in proving a preponderance of probability. As soon as the preponderance of probability is established the burden shifts to the prosecution which still has to discharge its original onus. Basically the original onus never shifts and the prosecution has, at all stages of the case, to prove the guilt of the accused beyond a reasonable doubt. 24. In Jagannath Mishra v. Ram Chandra Deo (supra), the Hon'ble Single Judge of Patna High Court after dealing with the subject which was before that Court held that there was clear intention to insult the zamindar. The accused ought to have a known that the insult would be likely to lead to a breach of the public peace, which was avoided owing to the most commendable behaviour of the zamindar. The words used were not intended to be defamatory but amounted to insult within Section 504 and the conviction under Section 500 should be altered to one under Section 504.The factual scenario on which afore noted decision cropped up is mismatched to with the present matter which we are dealing with. 25. In G. Narasimhan and Ors. v. T. V. Chokkappa (supra), the subject matter before the Hon'ble Supreme Court was a complaint which was filed under Sections 500 and 501 of IPC by the Chairman of the Reception Committee of the conference organised by the party named Dravida Kazhagam. The complaint was in respect of a news item published by the accused in their newspapers regarding certain resolution. The complaint was in respect of a news item published by the accused in their newspapers regarding certain resolution. The resolution was read out by the President of the conference and taken as passed because no one got up to oppose it. The conference consisted of a large number of members of the party sympathisers, leaders and outsiders including 5,000 women. 26. In that matter the Hon'ble Supreme Court held that it was impossible to have any definite idea as to the number of persons who attended the conference, the ideas and ideologies to which they subscribed and whether all of them positively agreed to the resolution in question. The conference clearly was not an identifiable or a definite body so that all those who attended it could be said to be its constituents who, if the conference was defamed, would, in their turn be said to be defamed. The Chairman of the Reception Committee of the Conference could not therefore be said to be an aggrieved person entitling to maintain the complaint within the meaning of Section 198, Criminal P.C. Whether the Dravida Kazhagam was an identifiable group or not was beside the point. 27. The factual background of the case which was dealt with by the decision noted above is totally different with the case which is in our hand and is not applicable in the present case. 28. In Asha Parekh and Ors. v. The State of Bihar and Ors. (supra), the Hon'ble Apex Court held that on facts portrayal of the lawyer in the film Nadan does not have any relevance to lawyers as a Class. The dialogues and visible representation point out only to Advocates who indulge in such practices. The impugned portions of the film cannot lead any reasonable person to form the conclusion that Advocate are pests and despicable bunch. 29. I repeat that this citation is also on different issue and it cannot be matched with the present case which is in our hand. 30. In Purshottam Lal Sayal v. Prem Shanker (supra), the Hon'ble Single Judge of Allahabad High Court, it was held that the plaintiff in a defamation suit must quote the precise words uttered by the defamer to enable the Court to decide whether they are capable of a defamatory meaning. But this rule relates to the plaintiff and not his witnesses. In Purshottam Lal Sayal v. Prem Shanker (supra), the Hon'ble Single Judge of Allahabad High Court, it was held that the plaintiff in a defamation suit must quote the precise words uttered by the defamer to enable the Court to decide whether they are capable of a defamatory meaning. But this rule relates to the plaintiff and not his witnesses. If he quotes the exact words of the defamatory statement both in his plaint and his testimony in the witnesses box, his suit will not fail because some of the witnesses remember the gist but not the exact words of the statement. 31. This citation too is based on different factual background and is not applicable in the case which we are now dealing with. 32. In Kartar Singh and Ors. v. The State of Punjab (supra), the factual background was connecting to shouting of defamatory slogans by members of procession against the Ministers of State Government. The point for consideration was whether prosecution is justified under Section 9 of Punjab Security of the State Act, 1953. The case was not a case of defamation but connected to the conduct of the appellants in uttering slogans which was taken by the people participated in the procession as ill and the Hon'ble Court has held that for uttering those slogans the appellants cannot be charged for an offence punishable under Section 9 of the Punjab Security of the State Act, 1953. 33. I repeat that the factual scenario which we are dealing with is not matching with the decision noted hereinabove. 34. The questions whether the appellant is entitled to protection under Explanation 4 or will fall within the ambit of tenth exception that the statement press conference was made in good faith and for public good are questions of fact and matters for evidence. Therefore, the proceeding is required to be substantially addressed to and tested through the trial with the assistance of evidence of the parties. The prayer for quashing of the proceeding pending before the learned Court below is yet to reach that stage. The case in hand is squarely covered by the citation i.e. Jeffrey, J. Diermeier and Anr. v. State of West Bengal and Anr. (supra) quoted hereinabove. 35. For the afore-going reasons, I am of the opinion that the revisional application is not maintainable. It stands dismissed. The case in hand is squarely covered by the citation i.e. Jeffrey, J. Diermeier and Anr. v. State of West Bengal and Anr. (supra) quoted hereinabove. 35. For the afore-going reasons, I am of the opinion that the revisional application is not maintainable. It stands dismissed. Urgent photostat copy of this order, if applied for, be given to he parties.